Article 2 inquests and the burden of proof when the answer is “there is no answer”

As the ongoing Maughan[1] litigation focuses minds on the standard of proof applicable for a suicide finding at an inquest, it is perhaps surprising how little thought is given to the issue of the burden of proof at an inquest. However, in the latest episode in the long running saga of the inquest into the death of Pearse Jordan, the Northern Ireland Court of Appeal has added some clarity to the position by recognising that there can, in some situations, be a burden of proof even in an inquisitorial setting. Nevertheless, determining factual issues in inquests will, sometimes, not be possible.

Burden? Standard?

First, a quick reminder of your second day of evidence lectures at law school:

Standard of proof: the level of evidential certainty required to establish a fact.

Burden of proof: the obligation on a party to adduce evidence to establish a fact.

Of course I hear you say, even a law school fresher would know there is no burden of proof within inquisitorial proceedings! Surely the clue is in the name? An ‘inquiry’ asks questions and establishes facts, but it does not require anyone to prove or disprove anything. An inquiry has no parties; no one has a formal case to put or a case to meet.

But just as the Maughan case (Bloghere) has reminded us all that assumptions are often the errors we don't realise we are making, the NI Court of Appeal now tells us we would be wrong: when Art 2 is engaged there can be a burden of proof in an inquest – one to be discharged by the state.

The Inquests

Pearse Jordan was shot and killed by a RUC officer in Belfast in November 1992. No other death has resulted in more coronial litigation; just entering the search term “Jordan inquest” into Bailii will produce more than 20 judgments displaying an array of judicial reviews, appeals and further appeals throughout the British courts and the ECtHR. The first inquest was held in 1995 but adjourned without conclusion. The second inquest was heard in 2012, the jury’s verdict quashed. The third inquest was heard by Mr Justice Horner (sitting as a Coroner) and concluded in November 2016.

Clearly, as a state agent had taken Mr Jordan’s life, the wider Art 2 procedural obligations were engaged at the inquest. A central issue was whether Pearse had been (unjustifiably and hence unlawfully) shot in the back, or whether the shots that had hit his back and shoulder were acts of justifiable self-defence because he had begun to turn towards the police sergeant who shot him.

After 16 days of live evidence, extensive written closing submissions by the interested persons were provided. The coroner re-read over 5,000 pages of evidence which included transcripts of the two previous inquests. Horner J’s comprehensive conclusions and verdict extended to 130 pages[2]. However, of central importance to the appeal was that after all that evidence the judge-coroner found that he was still unable to decide, on the balance of probabilities, what had happened.

He remained “profoundly unsure” as to what had happened; and so it was not possible for him to make determinations on several of the most important factual issues in the case. [3]

However the coroner went on to conclude that, although there was, generally, no burden of proof on any Interested Person in an inquest, where a death had resulted from lethal force used by the police Art 2 ECHR did place a burden on the police to provide a convincing and satisfactory explanation for the use of lethal force.

As this judge-coroner was unable to determine factually what had happened it must follow that the State had failed to discharge the onus which lay upon it under Art 2 to prove that, on the balance of probabilities, the killing of Pearse Jordan had been justified.

The Judicial Review

Mr Jordan’s parents sought to challenge the coroner’s conclusions on six grounds.[4] In essence they argued that the coroner had failed to decide central issues and erred in respect of his application of the burden of proof. They submitted he had abdicated his responsibility to arrive at a verdict in relation to the central issues by concluding that “It is now impossible with the passage of time to say with any certainty what happened on that fateful afternoon.”

When leave to bring judicial review was refused that refusal was appealed to the Court of Appeal. Whilst ‘only’ a permission decision, the 45 page judgment refusing the leave application reviewed for the first time the important principles relating to the burden of proof in inquests and Art 2.

The Court of Appeal's decision

The Court of Appeal upheld the coroner’s approach to the determination of disputed facts. The possible outcomes in relation to factual issues were (i) a positive finding one way on the balance of probabilities, (ii) a positive finding the other way on the balance of probabilities and (iii) a decision that he could not make any finding one way or the other on the balance of probabilities.

The assessment of facts is not a binary decision of “yes” or “no”, but the process of factual assessment must include the possibility of “don’t know”

Having reviewed authorities in civil and criminal litigation the Court found that a coroner was entitled to dispatch a disputed factual issue by resort to a burden of proof. But an inquest must not rely on any presumptions. A coroner must do all she/he can to make a finding, and when this is not possible the coroner must explain why not.

To be unable to accept either factual account on the balance of probabilities can be a legitimate position. However importantly, whilst that did not amount to a finding that the police account was disbelieved or wrong, the failure to find a fact established need not mean there would be failure to reach a conclusion. The coroner had been correct to consider that the effect of Article 2 was to place a specific burden on the state to provide a satisfactory and convincing explanation for the use of lethal force. He was entitled to find that the police had failed to meet the onus upon them to provide a lawful explanation for the killing.

However, that consequence in respect of Art 2 did not require or mandate factual findings to have been made touching on the wider justification/non-justification of the killing. Those other factual issues remained unanswered, and incapable of answer.

Comment

Given that this case was determined under Northern Irish coronial law, how then might these same principles apply in England and Wales?

There is some distinction between the applicable legislation in the two jurisdictions. The Northern Irish provisions in s.31 of the Coroners Act (Northern Ireland) 1931 require the coroner to: “..give, in the form prescribed by the rules under section 36 (his) verdict setting forth, so far as such particulars have been proved to (him), who the deceased person was and how, when and where he came to his death” .

Section 5 of the English and Welsh Statute, the Coroners and Justice Act 2009, similarly requires 'who, how, when and where' to be established, but does not contain the caveat “so far as may be proved”.

However, regardless of the difference in statutory wording, the NI Court of Appeal’s analysis, that the assessment of disputed facts is not a purely binary process, must be correct and of broader application.

Under both jurisdictions:

Inquests are not adversarial. An inquest is an inquiry into the circumstances of the death;

The reality may be that the available evidence does not give a satisfactory binary answer to a factual issue;

Binary factual decisions are anyway more consistent with a bi-partisan litigation in which strict burdens of proof apply;

It would be contrary to the purpose of an inquest for an issue to be determined in a particular way despite the evidence not justifying that conclusion. In such circumstances a third ‘not proven’ option will be a more accurate reflection of the facts.

Indeed the availability of an “open” verdict is itself an indication that in a coronial setting, the answer can legitimately be “I am unable to determine the relevant facts to the required standard of proof on the available evidence” . Or put more simply “the answer is there is no answer”.

However it is important that this position should not be used as a ‘cop out’ just to avoid making difficult decisions. As the Court of Appeal noted in Jordan it had clearly been a difficult task reconstructing events some 25 years previously. Making a factual finding required reconstruction of the precise movements of the deceased as he ran from a car and secondly the actions of the RUC sergeant who fired the fatal shot. Those events spanned only a few seconds. It was a task which the Court of Appeal found that the coroner had undertaken in painstaking detail, it was only having conducted the exercise that the coroner had found that he could not decide where the truth lay.

Perhaps, as with many legacy inquests, the real disservice done to justice is not the failure to make a finding, but the delay to examining the evidence whilst the matters are still fresh. Unsurprisingly, reliably reconstructing what happened after a delay of 25 years can, simply, prove to be impossible. As the coroner himself said: "The sooner inquests are held the better for all parties. The rule of law and justice demand no less."

Ian Skelt has acted for the NI Coroner in the most recent Jordan Supreme Court case: considering whether a claim under HRA 1998 alleging a breach of the requirement for a prompt investigation of a death contrary to Art 2 ECHR can be brought before the inquest has finally concluded.

[3] being profoundly unsure does not betoken a fine balance or a 50/50 case where the evidence could be tilted one way or the other.

[4] Coroners will be pleased to note that the Court of Appeal did not uphold the applicant’s criticisms of how some aspects the coroner’s conclusions had dealt (or not dealt) with the fine detail of the evidence. The court was clear that a coroner’s verdict should be read in context and as a whole: “We would observe that it is not appropriate to extract a number of words or a number of sentences out of the verdict but rather to consider those words or sentences in the context of the verdict as a whole. Furthermore we would also observe that the Coroner had a vast array of evidence, documents and submissions to consider and it is entirely unrealistic to expect him to deal with every argument or every piece of evidence in his verdict.”